The Norwegian Parliament decided that Norway should ratify the Nairobi Wreck Removal Convention and that the Convention must be given effect not only in Norway’s exclusive economic zone, but also in its territorial waters. The Norwegian Parliament also adopted legislation to implement the Wreck Removal Convention into Norwegian law once ratified.
As Gard informs, the legislation, which was adopted in December 2018, will introduce a dual system where the national rules on wreck removal will continue to apply and the Convention rules will be introduced as a parallel set of rules.
Under the dual system, the authorities may choose whether wreck removal can be ordered on the basis of the Convention, as incorporated in the Norwegian Maritime Code, or on the basis of the current national legislation found in the Norwegian Harbour and Waterways Act and the Pollution Act.
Currently, there are several differences between today’s national legislation and the Convention. For example, despite the fact that the provisions are all based on strict liability, the Convention channels liability only to the registered owner of the ship, while the national legislation has a wider definition of the liable party.
Moreover, under the Convention, the threshold for ordering a wreck removal on the basis of environmental concerns is that the wreck ‘may reasonably be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests’ of one or more states.
On the other hand, the threshold in the Pollution Act is lower, as it is sufficient that the wreck “may” cause “damage or inconvenience” to the environment. Another difference is that a reimbursement claim under the Convention will become time-barred three years after a danger has been determined according to the Convention. The Pollution Act has a deadline of five years from the date when a final administrative decision on reimbursement has been made.
Ratification of the Convention will also set out an obligation on the part of the owner to take out insurance against wreck removal liability and will create an automatic right for the authorities to claim directly against the vessel’s insurer for reimbursement of wreck removal costs.
This requires that the costs have in fact been incurred by the claimant, and the insurers can rely on the owner’s right to limit liability under the applicable global limitation of liability rules
Since no automatic right of direct action applies under the current legislation, claims are likely to be based on the Convention provided that the stricter requirements under the Convention are met. However, it is important to note that the duty to remove a wreck cannot be enforced against the insurers.
The entry into force of the newly adopted legislation awaits for the adoption of various regulations, regarding inter alia practicalities about mandatory insurance certificates. For the same reasons, the formal ratification of the Convention has not yet happened.
Nevertheless, Gard expects that ratification of the Convention will take place in the near future.
